§ 154 — Transfer of fiduciary relationships from affiliated banks or trust companies to subsidiary trust companies

§ 154. Transfer of fiduciary relationships from affiliated banks or\ntrust companies to subsidiary trust companies. 1. (a) At any time or\ntimes after the issuance to it by the superintendent of the\nauthorization certificate specified in article two of this chapter, a\nsubsidiary trust company may apply by verified petition to the supreme\ncourt, special term, in and for the county in which its principal office\nis located requesting that it be substituted for each of its affiliated\nbanks or trust companies specified in the petition (i) in every existing\nfiduciary capacity designated therein and (ii) in the case of the first\nsuch petition, in every fiduciary capacity which may take effect after\nthe date of the hearing provided for below. Each such specified\naffiliated bank or trust company shall join in such petition. Notice of\nthe filing of such petition shall be given prior to the filing thereof\nto the superintendent.\n (b) Such petition shall indicate the county wherein the principal\noffice of each affiliated bank or trust company joining in the petition\nis located and shall designate each fiduciary relationship existing at\nthe date thereof with respect to which such subsidiary trust company\nrequests substitution. Such petition shall additionally set forth, with\nregard to each existing fiduciary relationship designated therein, the\nname and address last known to the petitioner of each person entitled to\nreceive notice of hearing thereon, to wit:\n (i) in the case where an affiliated bank or trust company specified in\nthe petition is acting with one or more cofiduciaries in respect to such\nfiduciary relationship, each such cofiduciary; and\n (ii) in the case where the instrument creating such fiduciary\nrelationship so provides, each person who, alone or together with\nothers, is empowered to revoke, terminate or amend such instrument or to\nremove the corporate fiduciary; and\n (iii) in the case of any fiduciary relationship not specified in\nsubparagraph (ii) of this paragraph, each beneficiary currently\nreceiving income and any other beneficiary interested in the income and\nany person presumptively entitled to share in distributions of principal\nwere such fiduciary relationship terminated at the date of such\npetition; and\n (iv) in the case of any fiduciary relationship, including those\nspecified in subparagraphs (i), (ii) and (iii) of this paragraph, which\nis an estate of a deceased person or which is a guardianship or\nconservatorship, the clerk of the court in which such estate,\nguardianship or conservatorship matter is pending, together with a\nstatement that a notice has been, or is being, given to the persons\nspecified in such subparagraphs. If any of the persons specified in\nsubparagraph (i), (ii) or (iii) of this paragraph is an infant or an\nincompetent, such notice shall be given to the guardian or committee, as\nthe case may be, of his property. If any such infant, or incompetent\nshall not have a guardian or committee to so represent him, or if any of\nthe persons specified in subparagraph (i), (ii) or (iii) of this\nparagraph is incapacitated, unknown (or a person whose whereabouts are\nunknown) or confined as a prisoner in a penal institution, the court\nmay, in its discretion, appoint one or more guardians ad litem to\nrepresent any one or more of such persons.\n 2. When any petition described in subdivision one of this section\nshall have been filed, the supreme court for the county where filed\nshall enter an order fixing a date and time for hearing thereon, which\ndate shall not be less than thirty-five days after the filing of the\npetition, and approving the form of notice to be given by the petitioner\nas hereinafter provided. At least twenty-five days prior to the hearing\ndate, the petitioner shall cause a copy of such notice to be mailed by\nfirst class mail to each person identified in the petition as being\nentitled to receive notice under the provisions of this article, at such\nperson's address last known to the petitioner as set forth in the\npetition. In addition, the petitioner shall cause a copy of such notice\nto be published at least once a week for three successive weeks\npreceding the hearing date, the first such publication to be at least\ntwenty-five days prior to the hearing date, such publication to be in a\nnewspaper of general circulation published in each county in which the\nprincipal office of an affiliated bank or trust company specified in the\npetition is located, or if in any case there be no such newspaper, then\nin a newspaper of general circulation published in a contiguous county.\n 3. The notice to be mailed and published with respect to each such\npetition shall state (a) the time and place of the hearing thereon, (b)\nthe name of the subsidiary trust company which has filed the petition,\n(c) the name of each affiliated bank or trust company which has joined\nin such petition, (d) that the petition requests that the subsidiary\ntrust company be substituted for each of its affiliated banks or trust\ncompanies specified in the petition in every existing fiduciary capacity\ndesignated therein and, if appropriate, in every fiduciary capacity\nwhich may take effect after such hearing, and (e) that any person to\nwhom such notice is addressed may file an objection as provided in, and\nin accordance with, subdivision four of this section. All costs incurred\nin connection with the printing, mailing and publishing of such notice\nshall be borne by the petitioner.\n 4. Any person entitled to receive notice under the provisions of this\narticle may, as to the fiduciary relationship by which he is affected,\nobject to the substitution of the subsidiary trust company as fiduciary.\nAny such person wishing to so object must file a written objection to\nsuch substitution, setting forth the reasons therefor, with the clerk of\nthe court in which the hearing is to be held, and serve a copy thereof\nupon the attorney for the petitioner, at least three days before the\ndate of hearing and must appear at such hearing in person or by\nattorney.\n 5. On the date fixed for the hearing on such petition, upon making a\ndetermination that notice has been properly given as required by this\nsection, the said supreme court shall enter an order substituting the\nsubsidiary trust company for each of its specified affiliated banks or\ntrust companies in every designated existing fiduciary capacity and, in\nthe case of the first petition by the petitioner, in every fiduciary\ncapacity which may take effect thereafter, excepting fiduciary\ncapacities in any existing relationship with respect to which an\nobjection has been filed pursuant to and in accordance with subdivision\nfour of this section; provided, that in the case of a fiduciary\nrelationship where more than one person would be entitled under this\narticle to object to substitution of the subsidiary trust company, the\nproperly made objection by less than all of such persons shall be\nconsidered by the court which shall, in its sole discretion, determine\nwhether such substitution shall be so ordered. In the case of a\nfiduciary relationship in which an objection has been properly made by\nany person who is entitled pursuant to this article to object to such\nsubstitution, the court may, in its discretion, determine that the\nresignation of the affiliated bank or trust company will be accepted in\nrespect of such fiduciary relationship; if the court shall determine\nthat such resignation will be accepted, it shall enter an order\nsubstituting a different banking institution or subsidiary trust\ncompany, which shall have given its written consent to such substitution\nprior to the entry of such order. In construing the language of any\ninstrument which is the subject of a proceeding pursuant to this\narticle, nothing contained herein shall be considered to abrogate or\naffect the intent or written language of the instrument creating the\nfiduciary relationship. Upon entry of the court's order, the subsidiary\ntrust company shall, without further act, be substituted in every such\nfiduciary capacity.\n 6. In respect of each fiduciary capacity, existing and future, as to\nwhich substitution has been ordered pursuant to this article, each\ndesignation of a petitioning affiliated bank or trust company as\nfiduciary in any capacity contained in any contract, will or other\ndocument or instrument shall be deemed a designation of the subsidiary\ntrust company substituted for such bank or trust company pursuant to\nthis section. Any grant in any such contract, will or other document or\ninstrument of any rights, powers, duties or authorities, whether or not\ndiscretionary, shall be deemed conferred upon the subsidiary trust\ncompany deemed designated as the fiduciary pursuant to this section.\n 7. Upon substitution pursuant to this section, each affiliated bank or\ntrust company shall deliver to the subsidiary trust company all assets\nheld by such trust company as fiduciary (except assets held in\ncapacities with respect to which there has been no substitution pursuant\nto this section) and upon such substitution all such assets shall become\nthe property of the subsidiary trust company without the necessity of\nany instrument of transfer or conveyance. A trust company shall account,\nin respect of each of its existing fiduciary relationships designated in\nthe petition and as to which a substitution has been ordered under this\nsection, for that portion of the accounting period in which such\nsubstitution was ordered ending on the date of such order; thereafter\nthe subsidiary trust company which has been substituted as fiduciary for\nsuch bank or trust company shall account in respect of each such\nfiduciary relationship. Notwithstanding any provision in this chapter to\nthe contrary, after a substitution of existing fiduciary capacities\npursuant to this article, an affiliated bank or trust company shall\nremain jointly liable with the subsidiary trust company which has been\nsubstituted for it in respect of each of the existing fiduciary\nrelationships as to which such substitution has been ordered, but such\naffiliated bank or trust company shall be entitled to a right of\nsubrogation against such subsidiary trust company for all amounts paid\nby such affiliated bank or trust company as a result of such joint\nliability.\n